In a damning report released on his website this week, the State Ombudsman finds the Department of Corrections failed to justify transferring a prisoner to Yatala Labor Prison and holding him in its “solitary confinement” G Division for 66 days. He said it also failed to fulfil a legal requirement to inform the Corrections Minister of what was occurring.
In his report, Ombudsman Wayne Lines notes “with concern” that the department disagrees with his recommendation to formally apologise to the prisoner, and that it “will not consider” compensating the prisoner financially, contrary to another of Lines’ recommendations.
The Ombudsman warns he will report to the Premier and both houses of parliament if the department fails to implement his recommendations.
However, Correctional Services Minister Chris Picton supported the department’s position this morning, telling InDaily the prisoner had been charged with aggravated affray and property damage after he was allegedly involved in “the type of incident the separation (from other prisoners) was seeking to prevent”.
“Subsequent to this prisoner’s return to the prison population, he was allegedly involved in a major disturbance,” Picton said in a statement.
“He has been charged with aggravated affray and property damage.
“A payment or apology to this prisoner is not being contemplated.”
Picton told InDaily he had been “advised the reasons for separation in this instance were for the security and good order of the system, as needs to happen in the system from time to time” – a claim the Ombudsman rejected in his report.
There was “no information before me capable of supporting the department’s determination … that the complainant’s separation was ‘in the interests of security or good order within the correctional institution’,” Lines’ report reads.
The Ombudsman also urges the Government to amend the Correctional Services Act to create a maximum time period for solitary confinement, based on the assessment of the UN Human Rights Council that any period longer than 15 days constitutes “torture or cruel, inhuman or degrading treatment or punishment, depending on the circumstances”.
In December 2016, the prisoner (unnamed in the report) was among several from Port Augusta Prison taken to the G Division of Yatala Prison after another prisoner – “prisoner B” – was pepper sprayed to extract him from his cell.
According to the department’s submission to the Ombudsman, it had been given confidential information asserting that the prisoner who had complained to Lines’ office was involved in planning a “disturbance” at Port Augusta Prison.
The department told the Ombudsman the general manager of Port Augusta Prison had received confidential intelligence that “a number of prisoners were attempting to incite other prisoners to cause a disturbance … [which might] become violent”.
“Prisoner B”, was deemed to be the main instigator and extracted from his cell using pepper spray.
However, the complainant was deemed to have been “involved” and was transferred to Yatala.
The complainant told the Ombudsman he had no knowledge of the incident referred to by the department.
According to Lines’ report, the department failed to provide any written record of the confidential intelligence and failed to adequately justify either the transfer of the prisoner to Yatala or his prolonged solitary confinement there.
“Notwithstanding my direct request that it do so, the department has to date failed to identify precisely what (if any) involvement the complainant is alleged to have had in the planned disturbance at Port Augusta Prison,” Lines’ report reads.
“In my view, the lack of any demonstrable basis for the department’s direction that the complainant be separated, when viewed in light of the significance of that direction and the consequences upon the complainant, is so grave as to render the department’s decision unjust in all the circumstances.
“[The] duration and effect of the complainant’s separation from other prisoners was oppressive within the meaning … of the Ombudsman Act.”
The department had argued that, in addition to the confidential information received, the prisoner’s “subsequent poor behaviour” justified his separation from all other prisoners.
But, Lines writes: “There is also a certain perversity in the department’s submission to my investigation that the complainant’s ‘concerning behaviours’ and ‘risk of self-harm’ somehow justified the length of his separation from other prisoners.”
“… A cursory examination of the complainant’s case notes would have confirmed that his ‘concerning behaviour’ came as a direct result of the fact of his separation.”
Lines adds: “Beyond the circumstances of my investigation, the department would presumably be unable to meaningfully explain or justify its decision to transfer and separate the complainant in the event of litigation arising from the incident.
“Should the complainant or another prisoner have been seriously injured in the attempted transfer, the department would have been unable to produce contemporaneous records justifying or explaining the course adopted.”
The prisoner conceded in his submission to the Ombudsman that he had been “carrying-on” because he had been affected by the pepper spray directed on prisoner B, but: “I didn’t think carrying-on because I couldn’t breathe would end up in me being in G Division for two-and-a-half months … I was left in the dark.”
The prisoner reported that confinement in G Division had played with his head and that he had begun “talking to myself”.
Lines’ report also finds that the department broke the law by failing to inform the Minister of the original incident in December 2016, and about the prisoner’s subsequent solitary confinement, for a full month.
“The report concerning the complainant’s separation [the prisoner’s solitary confinement] comprises approximately one and a half A4 pages,” Lines’ report reads.
“[The] department, in failing to provide a report to the Minister as soon as reasonably practicable after the giving of the separation direction concerning the complainant, acted contrary to law.”
According to the department’s submission to the Ombudsman: “While in this case the report to the Minister was provided one month after the incident, it was a period of reduced administration and high staff leave.
“Unfortunately, over the Christmas and New Year period, the Department’s priorities must remain flexible depending on operational requirements.
“In this case I am satisfied that the Minister was kept apprised of the separation of (the complainant) in accordance with (the Act).”
According to the Ombudsman’s report, Lines’ office sent three emails and two letters, unsuccessfully seeking the department’s report into the incident at Port Augusta Prison.
Late in May 2017, the department’s Chief Executive responded, advising that: “the decision to transfer and accommodate [the complainant] at YLP was made following a careful risk assessment”.
However, the department conceded no “formal written risk assessment” was produced, nor was there any documentation of the “confidential intelligence” that justified the transfer, because that intelligence was given verbally.
However, Lines notes, “a confidential source’s reluctance to commit a piece of information to writing is of course no obstacle to the department creating its own contemporaneous record of that information”.
“The confidential intelligence and the department’s assessment of that information also constituted an integral (if not the only) basis for the department’s determination affirmed at each Separation Review (to keep the prisoner in solitary) …”
“One wonders how an officer of the department at Yatala Labour Prison could ever be satisfied of this fact in the absence of any record as to what the complainant was alleged to have done at Port Augusta Prison to justify his initial transfer and separation.”
Picton added in his statement that “I’m advised there are recommendations we will take on board as to how to improve procedures and processes relating to the separation of prisoners …”
“I have discussed the matter with the Correctional Services Chief Executive and he is preparing a report for the Ombudsman on the findings and this report is due back next month.”
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